Sri Avinash S/O Sidram Kodekal vs State Of Through
2022 Latest Caselaw 2035 Kant

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              IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200046/2016


BETWEEN:

Sri Avinash S/o Sidram Kodekal,
Age : 22 years, Occ : Govt. Service,
R/o Attar Compound, Jambavi Nagar,
Gazipura, Gulbarga.

                                                      ... Petitioner
(By Sri Gopalkrishna B.Yadav, Advocate)


AND:

State through Spl. Excise and
Lottery P.S., Gulbarga.
                                                    ... Respondent

(By Sri Gururaj V. Hasilkar, HCGP)


       This   Criminal   Revision   Petition   is     filed   under
Section 397 (1) of Cr.P.C. praying to               set aside the
impugned judgment of conviction and order of sentence
dated 18.07.2013, passed in C.C.No.215/2012 by the Prl.
Judicial Magistrate 1st Class at Kalaburagi and judgment
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dated 22.03.2016 passed in Crl.A.No.59/2013 by the 1 st
Addl. Sessions Judge at Kalaburagi by allowing this
revision petition, consequently acquit the accrued/the
petitioner of offence leveled against the petitioner.


      This petition coming on for Hearing this day, the
Court made the following:

                         ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader and perused the

records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.215/2012 on

the file of the Principal Judicial Magistrate First Class at

Kalaburagi by Judgment dated 18.07.2013, whereby, he

has been convicted for the offences punishable under

Sections 32 and 34 of the Karnataka Excise Act and

Sections 284 and 273 of IPC, which was confirmed in

Criminal Appeal No.59/2013 on the file of the I Additional

Sessions Judge at Kalaburagi by judgment dated

22.03.2016.

3. Brief facts of the case are as under:

A criminal case came to be filed based on the charge

sheet filed by the State through Special Excise and Lottery

Police Station against the accused and cognizance was

taken. In the complaint averments, it is revealed that on

01.11.2011 at about 6.30 p.m., the Special Excise police

station, Kalaburagi near Attar compound seized illicit liquor

to the tune of 17 litres and filed charge sheet against the

accused herein.

4. The presence of the accused was secured

before the learned Magistrate and plea was recorded.

Accused pleaded not guilty and as such, trial was held.

5. In order to prove the case of the prosecution,

prosecution in all examined 6 witnesses as PWs.1 to 6 and

relied on 6 documentary evidence, which were marked and

exhibited as Exs.P1 to P6. The sample of seized liquor was

marked as MO.1.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded, wherein the accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by adducing oral

evidence or filing a written submission as is contemplated

under Section 313(5) Cr.P.C.

7. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record and also following the

dictum of this Court reported in ILR 2001 KAR 4655 in

the case of State of Karnataka, Hassan City Police vs.

Lokesh and Others, convicted the accused for the

aforesaid offences and sentenced as under:

"Accused shall undergo sentence of rigorous imprisonment for a term of six months for the offence punishable under Section 32 of Karnatakaa Excise Act and shall pay fine of

Rs.10,000/- In default of payment of fine, accused shall undergo S SI for three months.

Further accused shall undergo sentence of simple imprisonment for a term of six months for the offence punishable under Section 34 0of of Karnataka Excise Act and shall pay fine of Rs.10,000/-. In default shall undergo S.I. for three months.

Further accused shall undergo sentence of Simple imprisonment for a term of six months for the offence punishable under Section 284 of Indian Penal Code and shall pay fine of Rs.1,000/- In C.CNo.215/2012 default of payment of fine, accused shall undergo S.L for one month.

Further accused shall undergo sentence of simple imprisonment for a term of six months for the offence punishable under Section 273 of Indian Penal Code and shall pay fine of Rs.1,000/-. In default of payment of fine, accused shall undergo S.I. for one month."

8. Being aggrieved by the same, accused

preferred an appeal before the District Court. The learned

Judge in the First Appellate Court after securing the

records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Being aggrieved by the

same, the accused is in this revision petition.

9. In the revision petition, following grounds are

raised:

x There is no prima facie evidence to prove the

charges against this petitioner, as such the

judgment order of the order of both court is against

the materiel available on record Hence, the

impugned Judgment of conviction and Orders of

Sentence are liable to be set aside.

x The both the court below have erred in convicting

the petitioner relying only on the evidence of the

complainant and his staff members and failed to

consider the evidence of independent panch

witnesses i.e. O Pw-3 and Pw-4 who are turned

hostile and not supported to the case of

prosecution. Therefore, the impugned Judgments of

conviction & Orders of Sentences are liable to be

set aside.

x The evidence of Pw1/complainant and his staff is

not at all corroborated with Ex-P.6 /Chemical

Examination report therefore it is only believing the

evidence of police witness the conviction of the

petitioner is oppose to law.

x It is further submitted that the alleged duty

conducted by the I.O. of seizing the contraband

liquor from the possession of the petitioner and

taking the sample of the same in bottle is not

believable since Pw3 and Pw4 have not supported

the case of prosecution. Hence, the impugned

Judgments of conviction and Orders of Sentences

are liable to be set aside.

x It is specific contents of petitioner is that the

accused /Petitioner has raised his voice in support

of Kannada Para Sanga against the police as such

the police have falsely involved to this petitioner.

10. Reiterating the above grounds, learned counsel

for the revision petitioner vehemently contended that both

the Courts have not properly appreciated the material

evidence on record and wrongly convicted the accused

resulting in miscarriage of justice and thus, sought for

allowing the revision petition.

11. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that the Trial Magistrate has rightly appreciated the

material evidence on record and sought for dismissal of the

revision petition.

12. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused/revision petitioner is guilty of the offences punishable under Sections 32 and 34 of the Karnataka Excise Act and under Section 284 and 273 of IPC, which was confirmed by the First

Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

13. In the case on hand, since seizure of liquor to

the tune of 17 litres has been proved by the prosecution

by placing necessary oral and documentary evidence on

record, both the Courts have justified in recording an order

of conviction against the revision petitioner.

14. Further, the trial Magistrate has placed reliance

on the aforesaid decision of this Court and applied the

legal principles rightly to the facts of this Court while

passing an order of conviction. The seizure panchanama

marked at Ex.P1 clearly shows that for want of panchas,

the raid party immediately proceeded to spot and the

same has been recorded in panchanama, which has been

rightly discussed by the trial Magistrate by bestowing his

attention to Section 43 of the Karnataka Excise Act.

Accused failed to offer any explanation or placed his

version on record. It is pertinent to note that head of raid

party did not possess any previous enmity or animosity to

falsely implicate the accused in this case.

15. These aspects of the matter has been rightly

re-appreciated by the learned Judge in the first appellate

Court. Accordingly, this Court does not find any legal

infirmity or perversity in reaching out such finding. Hence,

point No.1 is answered in the negative.

16. Regarding point No.2: The minimum

punishment prescribed for the offence under Sections 32

and 34 of the Karnataka Excise Act is one year rigorous

imprisonment and fine of Rs.10,000/-. However, the trial

Magistrate has granted only six months rigorous

imprisonment. Unfortunately, the State has not preferred

any appeal or revision seeking enhancement of the said

sentence.

17. Under such circumstances, this Court is of the

considered opinion that no case is made out for reduction

of the sentence. Hence, point No.2 is also answered in the

negative and pass the following:

ORDER

Revision petition sans merit and hereby dismissed.

The revision petitioner is granted time till

28.02.2022 to surrender before the Trial Court for serving

the sentence as ordered by the trial Magistrate.

Office is directed to return the trial Court records

with a copy of this order forthwith.

Sd/-

JUDGE

Srt